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09-0433-cr USA v. Plata-Zuniga 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 S U M M A R Y O R D E R 6 7 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 8 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 9 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 10 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 11 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 12 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 13 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST 14 SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 15 16 At a stated term of the United States Court of Appeals for 17 the Second Circuit, held at the Daniel Patrick Moynihan United 18 States Courthouse, 500 Pearl Street, in the City of New York, on 19 the 17day of February, two thousand ten. th 20 21 Present: 22 JON O. NEWMAN, 23 RALPH K. WINTER, 24 REENA RAGGI, 25 Circuit Judges. 26 27 28 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 29 30 UNITED STATES OF AMERICA, 31 Appellee, 32 33 34 v. No. 09-0433-cr 35 36 37 JUAN ALEJANDRO PLATA-ZUNIGA, 38 Defendant-Appellant. 39 40 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 41 42 43 44 45 APPEARING FOR APPELLANT: David J. Goldstein, Goldstein & 46 Weinstein, Bronx, New York. 47 48 APPEARING FOR APPELLEE: Lev L. Dassin, Acting United States 49 Attorney for the Southern District 50 of New York (Mark D. Lanpher and 51 Katherine Polk Failla, Assistant 52 United States Attorneys, of 53 counsel), New York, New York. 542 1 Appeal from the January 30, 2009 judgment of the 2 3 United States District Court for the Southern District of New 4 5 York (Batts, J.). 6 7 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND 8 DECREED that the order of the district court is AFFIRMED. 9 Juan Plata-Zuniga appeals from the sentence imposed by Judge 10 Batts following his guilty plea to a charge of illegal reentry 11 into the United States. 8 U.S.C. §§ 1326(a), (b)(2). We assume 12 the parties’ familiarity with the facts and various proceedings 13 in this court and the district court. 14 We review a district court’s sentence under a “deferential 15 abuse-of-discretion standard.” See United States v. Cavera, 550 16 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United 17 States, 552 U.S. 38, 41 (2007)) (internal quotation marks 18 omitted). We review for procedural or substantive error. 19 Cavera, 550 F.3d at 189. We find procedural error where a 20 district court “fails to calculate the Guidelines range . . . 21 [,] makes a mistake in its Guidelines calculation, . . . treats 22 the Guidelines as mandatory[,] . . . does not consider the § 23 3553(a) factors, or rests its sentence on a clearly erroneous 24 finding of fact.” Id. at 190 (internal citations omitted). 25 “[W]hen conducting substantive review, we take into account the 26 totality of the circumstances, giving due deference to the 27 sentencing judge’s exercise of discretion, and bearing in mind 28 the institutional advantages of district courts.” Id. “[W]e 29 will not substitute our own judgment for the district court’s on3 1 the question of what is sufficient to meet the § 3553(a) 2 considerations in any particular case.” Id. at 189. 3 Appellant argues that the district court committed 4 procedural error by failing to articulate specific reasons for 5 his sentence, and, in particular, neglecting to enunciate any of 6 the factors under 18 U.S.C. § 3553(a)’s so-called “parsimony 7 clause,” see United States v. Habbas, 527 F.3d 266, 274 (2d Cir. 8 2008). Although the district court is required to give the 9 reasons for imposing its chosen sentence, 18 U.S.C. § 3553(c), 10 there is no requirement as to the length or detail of the 11 district court’s explanation. United States v. Villafuerte, 502 12 F.3d 204, 210 (2d Cir. 2007) (“When the district court imposes a 13 Guidelines sentence, it may not need to offer a lengthy 14 explanation . . . .”); see also Rita v. United States, 551 U.S. 15 338, 356 (2007) (holding that Section 3553(c) does not require a 16 full opinion in every case). Nor is there a duty upon the 17 district court to discuss each factor of Section 3553(a) with 18 particularity. United States v. Banks, 464 F.3d 184, 190 (2d 19 Cir. 2006) (“There is no requirement that the court mention the 20 required factors, much less explain how each factor affected the 21 court’s decision.”); United States v. Fernandez, 443 F.3d 19, 30 22 (2d Cir. 2006) (“[W]e will not conclude that a district judge 23 shirked her obligation to consider the § 3553(a) factors simply 24 because she did not discuss each one individually . . . .”). 25 In the instant case, the district court explained that it 26 “considered the submissions of the parties, the defendant’s4 1 guilty plea and relevant sections of the advisory sentencing 2 guidelines, and the sentencing factors set forth in [Section 3 3553(a)]” to determine that a non-Guideline sentence was not 4 warranted. Sent. Tr. at 7.In addition, the court denied a 5 downward departure “based on the factors contained in . . . 6 Section 3553(a).” Id. at 7-8. Included in the written 7 submissions of the parties were repeated references to the 8 parsimony clause, as well as other sentencing arguments and 9 considerations for the district court to weigh in its sentencing 10 decision. Although it omitted a particularized discussion of 11 each relevant sentencing factor, the district court’s sentencing 12 explanation was sufficient to meet the objects of Section 13 3553(c). Specifically, it: (i) informed appellant of “the 14 reasons for his sentence,” (ii) allowed this court meaningful 15 review, (iii) enabled the public to understand why appellant 16 received his sentence, and (iv) “guide[d] probation officers and 17 prison officials in developing a program to meet [appellant’s] 18 needs.” See United States v. Molina, 356 F.3d 269, 277 (2d Cir. 19 2004) (explaining the underlying objectives of § 3553(c)). 20 Accordingly, we find no procedural error. 21 Appellant also argues that the district court’s sentence was 22 substantively unreasonable because it rejected his claims for a 23 downward departure. In particular, he notes his role as sole24 care provider to his 83-year-old mother, who currently resides in 25 the United States and suffers from severe cardiac dysfunction. 26 However, given the facts that appellant has five felony5 1 convictions, that he did not stay with his wife and child upon 2 reentry, and that seriously ill relatives are not uncommon among 3 incarcerated prisoners, we find no unreasonableness in the 4 sentence, which is at the low end of the Guidelines range. 5 Last, appellant argues that the district court misunderstood 6 the applicable legal standards for variance from the Guidelines. 7 He asserts that the district court erroneously required a basis 8 for departure to support a non-Guidelines sentence, based on the 9 district court’s statement at sentencing that “there is no reason 10 to depart from the advisory sentencing guideline range.” Sent. 11 Tr. at 7. However, when viewed in the broader context of the 12 sentencing transcript, this excerpt provides no indication that 13 the district court misunderstood the applicable legal standards 14 as to the issuance of a non-Guideline sentence. The district 15 court’s statement, when read in full, indicates that it found no 16 reason to depart from the Guidelines based on the submissions of 17 the parties, the defendant’s guilty plea, relevant sections of 18 the Guidelines, and the factors set forth in Section 3553(a). 19 For the foregoing reasons, the judgment order of the 20 district court is AFFIRMED. 21 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24 25 26